Law Professors Submit Amicus Brief in Juliana Case

This week I joined as a signatory for the Law Professors’ Brief in Support of Plaintiffs’ Opposition to the Government’s Petition for Writ of Mandamus as a part of the Dignity Rights Project in the case of Juliana v. United States, On Petition For A Writ Of Mandamus In Case No. 6:15-cv-01517-TC-AA (D. Or.) (9th Circuit). The Dignity Rights Project is a new initiative that aims to support human dignity rights through public and professional education, advocacy, and support for high-impact lawyering.

The brief argues that it is not clear error for a federal court to consider a claim that due process under the U.S. Constitution can encompass governmental acts that cause or contribute to the deprivation of a liberty interest in a stable climate for current and future generations. You can access the full brief here.

Professors Jim May and Erin Daly submitted an Amicus Brief on behalf of more than 60 Law Professors in Support of Plaintiffs Kelsey Cascadia Rose Juliana and others, in atmospheric trust litigation brought by Our Childrens’ Trust against the Government for actions contributing to climate change. When the District Court found that the young plaintiffs had adequately pled (among other things) that the government had violated their substantive due process rights to liberty under Fifth Amendment, the Administration asked the 9th circuit for an extraordinary writ of mandamus on the ground that holding a trial would violate separation of powers. The brief argues that the district court’s decision did not constitute “clear error” and that the decision below was consistent with a long line of Supreme Court cases on the due process clauses that recognize that liberty interests are not frozen in time but can adapt to new circumstances. It further argued that, neither the fact that a case raises new, nor important, nor complex issues of policy justifies withdrawing the claim from the jurisdiction of the federal courts. Finally, the brief argues that issuing a writ under these circumstances would allow the Defendants to avoid judicial oversight and ignore core federal judicial functions to determine the meaning of a constitutionally protected fundamental right.